Bombay High Court
Hirkanya Tanba Janbandhu vs Zilla Parishad Thr. Chief ... on 23 January, 2018
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.84 OF 2017
APPELLANT: Hirkanya Tanba Janbandhu, Aged about
(Org. 45 years, Occu-Household, R/o Lumbini
Plff/Appellant
Nagar, Armori Road, Bramhapuri,
on RA)
Tahsil, Armori Road, Bramhapuri,
Tahsil-Bramhapuri, District-Chandrapur.
-VERSUS-
RESPONDENTS: 1. Zilla Parishad through Chief Executive
Org. Officer, Zilla Parishad, Chandrapur,
Defts/Respdts.
Tahsil & District-Chandrapur.
On RA)
2. District Health Officer, Zilla Parishad,
Chandrapur, Tahsil & District-
Chandrapur.
3. Primary Health Center, Maushi, Tahsil-
Nagbhid, District-Chandrapur.
4. Hemant S/o Tanba Janbandhu, Aged
about 28 years, Occ-Education,
5. Munna S/o Tanba Janbandhu, Aged
about 20 years, Occ-Education,
6. Tanuja D/o Tanba Janbandhu, Aged
about 24 years, Occ-Education,
Respondent Nos.4 to 6 R/o Lumbini
Nagar, Armori Road, Bramhapuri,
Tahsil-Bramhapuri, District-Chandrapur.
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Shri Rohit Joshi, Advocate for the appellant.
Shri M. M. Sudame, Advocate for the respondent No.1
CORAM: A.S. CHANDURKAR, J.
DATED: JANUARY 23, 2018.
ORAL JUDGMENT :
1. The original plaintiff who had filed suit for a
declaration that she was the legally wedded wife of Tanba
Janbandhu and was thus entitled to receive his service benefits
with further prayer seeking to restrain the defendant Nos.1 to 3
from disbursing those benefits in favour of defendant Nos.4 to 6
has filed the present appeal.
2. According to the plaintiff, she was married with Tanba
on 20-4-1999. Said Tanba was working as a Pharmacist with the
Primary Health Center of Zilla Parishad, Chandrapur. The first
wife of Tanba, Lata was mentally ill and hence the plaintiff started
residing with Tanba. He expired on 26-12-2007. As the defendant
Nos.4 to 6 who are the issues of Tanba were trying to secure the
service benefits, the suit came to be filed. The defendant Nos.1 to
3 pleaded that as per service records, the nomination was made in
favour of the first wife Lata and children from said marriage. The
defendant Nos.4 to 6 also filed their written statement and
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pleaded that the plaintiff was not the legally wedded wife of
Tanba.
3. After the parties led evidence, the trial Court recorded
a finding that Tanba had performed second marriage with the
plaintiff on 20-4-1996 when the earlier marriage was subsisting.
His first wife expired on 2-8-1998 and therefore, the marriage with
the plaintiff was void in view of Section 11 of the Hindu Marriage
Act, 1955. The suit was accordingly dismissed. The first appellate
Court confirmed this finding and dismissed the appeal.
4. Shri Rohit Joshi, learned Counsel for the appellant
submitted that Tanba was in service with the respondent Nos.1 to
3 and his service conditions were governed by the Maharashtra
Civil Services (Pension) Rules 1982 (for short, the said Rules). As
per provisions of Rule 116 (6)(a)(1) of the said Rules even the
second wife was entitled to receive service benefits equally. In
that regard, he placed reliance on the judgment of the Division
Bench in Union of India and Others Vs. Jayavantabai Ramrao
Kewoo 2015(2) Mh.L.J. 328 and judgment of the learned Single
Judge in Kantabai ew/o Dhulaji Shriram and others vs. Hausabai
Dhulaji Shriram and others 2015(3) Mh.L.J. 883. He submitted
that in the light of aforesaid decisions, the suit ought to have been
decreed.
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5. Shri M. M. Sudame, learned Counsel for the
respondent No.1 supported the impugned decree. It was submitted
that the marriage of the appellant was held to be void as it was
entered into during subsistence of the first marriage. Hence no
relief could be granted to the appellant. Both the Courts rightly
considered this aspect of the matter and dismissed the suit.
6. I have heard the learned Counsel for the parties and I
have gone through the impugned judgments. The finding recorded
by both the Courts is that the plaintiff had married Tanba on 20-4-
1996 when his earlier marriage with Lata was subsisting. It was
thus held that the plaintiff's marriage was void which finding has
been rightly arrived at. In so far as the claim for service benefits
by relying upon the provisions of Rule 116(6)(a) of Rules is
concerned, the said Rule has been considered by the Division
Bench in Smt. Chanda Hinglas Bharati vs. The State of Maharashtra
and others 2015 Mh.L.J. Online 17. In Second Appeal No.385/2016
(Smt. Kunda Rushi Meshram and others vs. Sushila Rushiji Meshram
and others) this very Rule was considered by this Court and after
considering aforesaid decisions that were relied upon by the
learned Counsel for the appellant, it was held as under:-
"6. In Chanda Hinglas Bharati (supra), the
Division Bench considered an identical question as
to whether a widow from a second marriage was
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entitled to receive pensionary benefits under Rule
116(6)(a)(1) of the said Rules. After considering
the earlier judgment of the Division Bench in
Union of India and Others Vs. Jayavantabai Ramrao
Kewoo 2015 (2) Mh.L.J. 328 and distinguishing the
same, it was held as under:
"In our considered view, more widows than
one would be entitled to pension only if the
Hindu employee has married the woman
(widow) before the coming into force of the
Hindu Marriage Act on 18-5-1955 and in case
of employees where such marriage is
permissible under the personal law applicable
to the said employee or Government servant
and the other party to the marriage. It
appears from the provisions of the
Maharashtra Civil Services (Conduct) Rules
that the marriage during the life time of a
spouse could be accepted only if the marriage
is permissible under the personal law
applicable to both the parties to the
marriage."
In Kantabai Dhulaji Shriram and others
(supra) which was relied upon by the learned
Counsel for the appellants, learned Single
Judge held that considering the language of
Rule 116 more than one widow is entitled to
receive pension in equal share. It was held
that even a widow of a Hindu from a second
marriage contracted during subsistence of
the earlier marriage was entitled for pension
in equal share.
This judgment of learned Single
Judge as well as the earlier judgments of the
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Division Bench were considered in Draupada
@ Draupadi Jaideo Pawar vs. Indubai
Kashinath Shivram Chavan 2016(3) Mh.L.J.
836 by another learned Single Judge. It was
found that the earlier judgment of the
Division Bench in Union of India and others
(supra) had been challenged before the
Hon'ble Supreme Court and though the
Special Leave Petition had been dismissed,
the issue raised therein had been kept open.
Reference was then made to the subsequent
judgment of the Division Bench in Chanda
Hinglas Bharati (supra) and it was observed
that no relief could be granted in favour of a
widow from a void marriage. It was also
found that the judgment of learned Single
Judge in Kantabai Dhulaji Shriram (supra)
had not been brought to the notice of the
Division Bench in Chanda Hinglas Bharati
(supra). Relying upon the judgment of
the Division Bench in Chanda Hinglas
Bharati (supra) it was held that the second
widow of a Hindu/Christian could not claim
entitlement to pension when the marriage
was void in law".
7. Thus, it is clear that if the marriage of the plaintiff is
found to be void under Section 11 of the Hindu Marriage Act,
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1955, the plaintiff would not be entitled for any benefit under Rule
116(6) of the Rules. The legal position in that regard is quite
clear. On that count, therefore, the plaintiff is not found entitled
for any relief whatsoever. The Second Appeal, therefore, does not
raise any substantial question of law. The same is dismissed with
no order as to costs.
JUDGE
/MULEY/
